Since well before the Sedona Conference published its Cooperation Proclamation, it was well-known that cooperation between requesting and responding parties was crucial to an efficient and cost effective discovery process. Where parties cooperate, discovery disputes are limited, narrowed and, sometimes, even eliminated. Where parties do not cooperate, there are more disputes, they are uglier, and the costs escalate. This ideal of cooperation has been incorporated into the Federal Rules of Civil Procedure. Rule 1 requires the parties to construe, administer and employ the rules “to secure the just, speedy and inexpensive determination” of an action. The Advisory Committee Note to Rule 1, noting that “most lawyers and parties cooperate to achieve these ends,” goes on to state that “[e]ffective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure.” (emphasis supplied). The question then is not whether cooperation is good, but rather how parties and the court can encourage and enable cooperation, especially where the parties and counsel are aggressively antagonistic.

The most important factor in generating cooperation in discovery is building trust between opposing counsel. Without trust that the opposing counsel will act in good faith, reasonably and fairly, counsel will be glacially slow to reach agreements, which will be drawn narrowly and excruciatingly documented. Without trust, counsel will be afraid to extend any courtesy, fearing (or expecting) that it will not be reciprocated. Without trust, counsel fear that any slip or any concession in discovery will be converted into a weapon to be used to undermine a client's substantive case and leverage settlement or dismissal.

The good news is that trust can be built between opposing counsel. Even where parties hate each other and the cases are large, emotional and “bet the company” matters, counsel can still cooperate and can trust each other. This article discusses ways that parties and the court can generate trust and build a more cooperative working relationship.

Before addressing trust, however, it is necessary to say a few things about cooperation, a term that is used often but rarely defined. Cooperation is a process, not a result. Cooperation is not the absence of disputes, but rather the process of working together to narrow disputes through principled compromise. It does not require capitulation or complete transparency, but it does mean that both sides must give up things of value to both sides to gain something of even more value. Cooperation does not require parties to compromise principled discovery positions or to sacrifice substantives issues in their cases, merely to reach agreements.

Building trust and creating cooperation has a great deal in common with being professional, civil, and reasonable. We can disagree and be adversarial without being acrimonious. Where trust and cooperation are absent, we hope the following guidance is helpful:

• Trust is built in measured steps. Build momentum by finding areas of common agreement and addressing those first. Creating an atmosphere where people are seeing compromise will lead to additional compromise.

• Trust is generated by the unnecessary. Agreeing to do something that you were clearly obligated to do does not build trust. Acquiescing to a request that is not strictly required (i.e., compromising) builds trust.

• Compromise needs to be mutual. Both sides must believe that the other side is compromising so that they do not feel they are being taken advantage of. If one side believes the case and negotiations are one-sided, cooperation will grind to a halt.

• Be prepared for meet and confers. Opposing counsel cannot tell the difference between active stonewalling and obstructionism and counsel simply not being prepared for the meeting. Lack of preparation makes it difficult to reach agreements.

- Explain what you can do and what you cannot do. Being prepared allows you to clearly articulate the practical parameters of discovery and your principled legal decisions.

- Support these “cans and cannots” with good faith, logical reasons, and facts. An opponent can disagree with your reasoning or the implications of your facts and still cooperate. Where a party cannot do this, its opponents presume the worst: stonewalling or a hidden agenda.

• Do not go nuclear from the get go. Not every disagreement is the end of the world. Just as discovery is proportional, the response to every disagreement does not require a Rule 11 motion. Narrow rather than expand the disputes. Be careful of linking disputes together unless you believe that it will make it easier (not harder) to resolve them.

• Admit to being wrong. This can be the hardest for lawyers, but it builds trust. If your opponent is right and brought facts or law to light that you had not considered, accept it and move on. You would want the same from her or him.

• Be courteous to your opposing counsel. Where possible and where it will not jeopardize some larger goal, let the other side know when you are about to do something that will cause them grief. Likewise, unless absolutely necessary, do not file motions to compel at midnight on a Friday or knowing the response is going to be due the day after Christmas or the July 4th holiday. We are all professionals.

• Create a course of dealing so that you are predictable. Create a reputation inside the case for how you handle discovery matters and how you approach problems.

• Tone matters. How we address our opponents in telephone calls, meetings, emails, and letters affects our ability to reach agreements. If you disrespect your opponent, do not expect him or her to compromise with you or give you the benefit of the doubt. Belligerence breeds belligerence.

• Give your opposing counsel an opportunity to save face. If your opponent has made a discovery mistake that is not dispositive of your matter, do not embarrass your opponent. None of us are perfect. Give him or her an out and opportunity to fix it. This does not mean you jeopardize your client's case or undermine its interests, but you are going to need something from your opponent down the road and needlessly rubbing his nose in his mistake does not build trust. You do not need opposing counsel to kowtow to you; you just need the discovery you are entitled to (or the appropriate discovery protections your client is entitled to).

None of these suggestions are to be applied woodenly. All situations are unique. Lawyers are hired, ultimately, for their judgment. Use that judgment in applying these ideas.

Finally, this guidance is not meant to turn you into a punching bag. If you are acting respectfully, with courtesy and in good faith and your opponent refuses to be reasonable, we are not saying that you should keep compromising in the face of no reciprocity. You should remain respectful and courteous, but cooperation is a two-way street and if your opponent refuses, then you should not harm your client's position. And you should resist the impulse to retaliate or take unreasonable positions in response. If the issues wind up before the court, you always want to be seen as the reasonable lawyer. Courts need to step in and reward good behavior and chastise bad behavior, without undermining a party's ability to bring principled arguments to the court's attention.

Andrew Peck is a former magistrate judge in the U.S. District Court for the Southern District of New York and is a senior counsel at DLA Piper. Dawson Horn is an Associate General Counsel, Vice President & Deputy Director of eDiscovery at AIG. David Kessler is partner at Norton Rose Fulbright and the chair of the firm's e-discovery and information governance group.